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Irish abortion law "violated woman's right" to abortion on health grounds

Date: 16 December 2010
Source: BBC News

The European Court of Human Rights ruled today on the cases of three women who had had terminations in Britain and who had filed for a ruling on whether they should have been able to have their abortions legally in Ireland under existing law. Abortion in the Irish Republic is allowed in law if the woman's life is at risk. The Court ruled that two of the women had not had their rights breached. However, the ruling in the third woman's case was that her rights had been violated, which could require a change to Irish regulations or even the law.

All three women said they believed they had not been entitled to an abortion under Irish law, but all three had suffered medical complications on returning to the Irish Republic. They all complained that Irish restrictions on abortion had stigmatised and humiliated them, risking damage to their health.

The first two women in the case were a single mother, who had other children in care, and a woman who was concerned about the danger of an ectopic pregnancy. The third woman, who had previously had cancer and feared that pregnancy could cause it to recur, argued that although she believed her pregnancy had put her life at risk, there was no procedure under which she could have established whether she had a right to an abortion in Ireland. The court ruled that in her case, there had been a 'failure to implement the existing constitutional right to a lawful abortion' in Ireland.

The main paragraphs of the decision of the European Court of Human Rights are appended below. The full text is available here: http://www.echr.coe.int/echr/Homepage_EN.

Decision of the Court

Scope of the case

The Court emphasised that its role was to examine the legal position on abortion in Ireland in so far as it directly affected the present applicants.

It then observed that it had not been disputed that all three applicants had travelled to England for abortion: the first two for reasons of health and well-being, and the third applicant given her fear that her pregnancy posed a risk to her life. While travel abroad had undoubtedly represented a psychological burden for all three, and for the first applicant a financial drain, the Court found that the necessary medical advice and treatment had been available to them in Ireland both before and after their abortions. The Court found that, apart from the psychological impact on the applicants of going abroad to do something which was a criminal offence in their own country, the criminal sanctions in Ireland applicable to abortion had had no direct relevance to the complaints of the first and second applicant. The Court examined the risk of those sanctions in the third applicant's case together with the merits of her complaint.

Exhaustion of domestic remedies

The Court found ineffective the domestic legal remedies which the Government considered the applicants should have exhausted, which remedies included a constitutional action and an application under the European Convention on Human Rights Act 2003. Consequently, there was no need for the first and the second applicant to use them before turning to the Court. As regards the third applicant, the Court examined that question together with its analysis on the merits.

Article 2

The Court recalled that there had been no legal obstacle to any of the applicants travelling abroad for an abortion. Given that the third applicant, who had suffered post-abortion complications, had not claimed that those had represented a threat to her life, the Court rejected her complaints as inadmissible.

Article 3

The Court rejected all three applicants' complaints under Article 3, as it found that the psychological and physical burden undoubtedly suffered by each of them as a result of their travelling abroad for an abortion, had not been sufficiently grave to represent inhuman or degrading treatment prohibited under Article 3.

Article 8

Third parties provided lengthy submissions both in favour and against widening access to abortion services in Ireland.

The Court held that, while Article 8 could not be interpreted as conferring a right to abortion, its prohibition in Ireland came within the scope of the applicants' right to respect for their physical and psychological integrity, hence within their private lives, and thus under Article 8. The Court examined the complaints of the first and second applicant separately from those of the third applicant.

First and second applicant

The Court found that the prohibition on the termination of the first and second applicants' pregnancies had represented an interference with their right to respect for their private lives. That interference had been in accordance with the law and had pursued the legitimate aim of protecting public morals as understood in Ireland.

Examining whether the prohibition had been necessary in a democratic society, and in particular, whether a pressing social need had existed to justify it, the Court observed that a consensus existed among the majority of the members States of the Council of Europe allowing broader access to abortion than under Irish law: abortion was available on request in some 30 European countries; it was available for health-related reasons in approximately 40 States; and it was available for well-being reasons in about 35 of those. Only three States had more restrictive access to abortion than Ireland, in which States abortion was prohibited regardless of the risk to a woman's life. In addition, Ireland was the only Council of Europe member State which allowed abortion only when the pregnancy posed a risk to the life of the expectant mother.

However, the Court found that the undisputed consensus among the Council of Europe member States was not sufficient to narrow decisively the broad margin of appreciation the State enjoyed in that context. The Court had accepted in a prior case - Vo v. France - that the question of when life began came within the States' margin of appreciation. As there was no European consensus on the scientific and legal definition of the beginning of life and as the right of the foetus and mother were inextricably linked, a State's margin of appreciation concerning the question of when life began implied a similar margin of appreciation as regards the balancing of the conflicting interests of the foetus and the mother.

The Court then applied that margin of appreciation. Having regard to the first and second applicants' right to travel abroad to obtain an abortion and to appropriate pre- and post-abortion medical care in Ireland, as well as to the fact that the impugned prohibition in Ireland on abortion for health or well-being reasons was based on the profound moral values of the Irish people in respect of the right to life of the unborn, the Court concluded that, the existing prohibition on abortion in Ireland struck a fair balance between the right of the first and second applicants to respect of their private lives and the rights invoked on behalf of the unborn.

There had, therefore, been no violation of Article 8 as regards the first and the second applicants.

Third applicant

The Court noted that the third applicant had a rare form of cancer and she feared it might relapse as a result of her being pregnant. The Court considered that the establishment of any such risk to her life clearly concerned fundamental values and essential aspects of her right to respect for her private life.

It went on to find that the only non-judicial means for determining such a risk on which the Government relied, the ordinary medical consultation between a woman and her doctor, was ineffective. The uncertainty surrounding such a process was such that it was evident that the criminal provisions of the 1861 Act constituted a significant chilling factor for women and doctors as they both ran a risk of a serious criminal conviction and imprisonment if an initial doctor's opinion that abortion was an option as it posed a risk to the woman's health was later found to be against the Irish Constitution.

Neither did the Court consider recourse by the third applicant to the courts (in particular, the constitutional courts) to be effective, as the constitutional courts were not appropriate for the primary determination of whether a woman qualified for a lawful abortion. It was likewise inappropriate to ask women to pursue such complex constitutional proceedings when their right to have an abortion if pregnancy posed a threat to their life was not disputed. In any event, it was unclear how the courts were to enforce any mandatory order requiring doctors to carry out an abortion, given the lack of clear information from the Government to the Court as regards lawful abortions currently carried out in Ireland.

The Court concluded that neither the medical consultation nor litigation options, relied on by the Irish Government, constituted effective and accessible procedures which allowed the third applicant to establish her right to a lawful abortion in Ireland. Moreover, there was no explanation why the existing constitutional right had not been implemented to date.

Consequently, the Court concluded that Ireland had breached the third applicant's right to respect for her private life given the failure to implement the existing Constitutional right to a lawful abortion in Ireland. Accordingly, there had been a violation of Article 8.

The Court rejected the applicants' remaining complaints.